Legal Affairs
space


Current Issue

 
 
 
 


printer friendly
email this article
letter to the editor


space space space
space


July|August 2004

There's an old saying in Colorado: You can steal my wife, but not my water.

Should the state pour its scarce water into river courses that are good for fish and paddlers or slake the thirst of its growing cities?

By Bruce Barcott

TERRY TUCKER PADDLED HIS KAYAK ON A WARM AUGUST EVENING into a man-made rapid called the Clear Creek rodeo hole, where the water poured over artfully placed boulders into a boiling swirl. He executed a 360-degree spin before the current flipped his boat and carried him with it downstream. Righting himself with an Eskimo roll, the 46-year-old real estate appraiser came up dripping and smiling. "This is one of the nicest river courses I've ever seen," he said.

The mile-long paddling playground is the pride of Golden, Colo. It's also the most legally contested stretch of water in the nation's most river-obsessed state. In Colorado, politics aren't liberal-conservative so much as wet-dry. The river's flow determines who makes a living and who doesn't, which towns and industries thrive and which do not. "There's an old saying, 'You can steal my wife, but not my water,' " says Jack Little, who teaches water law at the University of Denver. "That's how seriously people take it."

On one side of the divide are the old-line "water buffalo," the agricultural irrigators and sprawling cities that have long controlled the river's flow. On the other are recreation-dependent towns like Golden in the western half of the state, which hope that the rush of water through a kayak run will boost their local economies. Last spring, Golden took on the buffalo by claiming the right to secure water for the Clear Creek kayak course. The Colorado Supreme Court ruled in the town's favor and changed the rules of the water game in the state. For the first time, towns using water for recreation are on equal legal footing with the thirsty farms, ranches, and suburbs that have traditionally directed the state's water flow.

Golden's case didn't settle things so much as spark a new set of battles. As other towns scamper to claim their water rights, the fast-growing suburbs around Denver, Aurora, and Colorado Springs are scrambling to stop them. "If Colorado continues to grow, you can't stop it by trying to turn off the water," Colorado governor Bill Owens told a gathering last summer. But lurking behind the governor's bravado is a fear shared by other state leaders—that the prosperity and influx of people that have made Colorado the nation's third-fastest-growing state (behind Arizona and Nevada) could be shut off, and soon, when the water runs out.

COLORADO APPEARS TO BE WATER-RICH. Its grand mountain ranges, which include 54 peaks higher than 14,000 feet, hold vast drifts of high snowpack. When the snow melts in the spring, the runoff becomes a natural treasure. Seven major rivers, including the Colorado and the Arkansas, trace their headwaters to the state. But much of the snowmelt runs out of state, and Coloradoans can't stop it. Under the terms of 11 interstate compacts and treaties, Colorado must let up to two-thirds of its water run into downstream states like Kansas and Utah as well as to Mexico. Even kayakers know the terms of the deal. "We give so much water away to other states that it doesn't leave a lot left for us," Terry Tucker said as he pulled his boat ashore in Golden.

Decades spent watching their lifeblood flow away have made Coloradoans tightfisted about sharing what's left. The state is split down the middle geographically and politically by the Front Range of the Rockies, which rises up like a curtain from the flat stage of the plains. "Eighty-five percent of the water flows down the western half of the Rockies, and 90 percent of the population lives on the eastern half," explained Reeves Brown, executive director of Club 20, a coalition that defends western counties against water grabs.

When cities to the east like Denver raid the west, they are helped—some might say encouraged—by Colorado's water law, one of the most market-oriented in the nation. Captured in the colloquial phrase "first in time, first in right," the law is known to local lawyers as "pure prior," shorthand for prior appropriation. The doctrine treats a river as a well where parched people line up with buckets. Whoever gets to a water source first gets the first dip in the well every year thereafter. The person who is second in line gets perpetual rights to the second dip, and so on. During dry years when there isn't enough water to fill every bucket, the front-of-the-liners (senior water rights holders, in legal parlance) are under no obligation to cut back on their take. They get their share of water before anyone else gets any.

Prior appropriation grew out of the mid-19th-century gold rushes, when miners in Colorado ran long flumes across the land that separated them from a stream, so that they could draw out water to separate gold from gravel. The doctrine has much more in common with the basic principle of mineral rights—first to the stake gets the claim—than it does with riparian, or river, law, which dates to the fifth century. Riparian law's core principle is that only the owners of land adjacent to a stream may take its water. In other words, if you don't own property on a riverbank, you're out of luck. When American courts were allocating water rights in the 19th century, riparian law worked well in the East, where rainfall was abundant and irrigation that came from river water was rarely needed. But it made no sense in the arid West. On the rainless plains of eastern Colorado, a settler either pumped water from a river to his crops, or starved. Granting water rights only to streamside property owners would have limited farms to the land strung along rivers, amid deserts of unused land.

The miners and farmers of the Rockies came up with an extraordinary solution. They declared that when a person who owned a claim in Colorado Territory didn't have a stream running through his property, "he shall be entitled to a right of way through the farms or tracts of land which lie between him and said stream." In other words, if Farmer Jones's property lay between the river and Farmer Smith's land, Smith could dig a ditch through Jones's land to get to the water. The gold miners had built wooden flumes across federal land; the Colorado law, by contrast, said you could cross over any land—public or private. "Look at that law!" exclaimed Justice Gregory Hobbs of the Colorado Supreme Court at his office in Denver when I met with him there last August, pointing to a copy of the law passed in 1861. "They are making trespass legal!"

Hobbs is widely regarded as the state's leading water jurist and historian. He's a man who embraces his Western heritage: Old maps of Colorado hang in his office and he likes to "cowboy up" his business attire with a splashy bolo tie and pointy boots. "Colorado's water law was a radical break," he said. "There is no obvious precedent for this law." In other words, the Rocky Mountain framers just made it up.

Amazingly, pure prior worked. The prairies bloomed with a thousand farms. An even stronger version of the doctrine made it into the state's 1876 constitution. "The right to appropriate the unappropriated waters of the natural streams of the state for beneficial use in order of priority shall never be denied," the settlers wrote. The clause proved to be more radical, perhaps, than its drafters realized. At the time, "beneficial use" meant crop irrigation, but that wasn't spelled out. So the phrase became a marvelously elastic term of art. Domestic use—meaning anything other than lands or plants—was quickly deemed "beneficial." Today the term encompasses everything from generating power to suppressing dust and making snow.

In 1891, the state legalized the sale of access to water separate from the land it crosses, which effectively set in motion a century of water grabs. Legendary in Colorado lore is the Rocky Ford Ditch grab. In 1980, a water speculator named Robert Spencer bought an ailing sugar refinery in southeastern Colorado. Spencer didn't care about sugar. He wanted the irrigation rights to 4,000 acres of adjoining land. He bought the refinery, rights and all, for $13 million—and sold it six years later to the growing city of Aurora, 160 miles to the north, for $22 million. With a stroke of the pen, 2.7 billion gallons annually went from nurturing crops to filling suburban bathtubs. Today, a right to water can often command twice the price as the land it irrigates. A Colorado farmer often refers to the water rights he holds as "my 401(k)," anticipating the day he'll sell out to a needy suburb and retire on the proceeds.

Colorado's pure prior doctrine, however, does nothing to stop a river from being dipped or pumped right out of existence. It doesn't matter that killing a river means killing the wildlife that depend on it. Fish can't stake a water claim. Fearing a collision between state water law and federal protections for endangered species, in 1973 the legislature gave the Colorado Water Conservation Board the right to safeguard a river's water level. The board had been established in the 1930s to protect and develop the state's water supply, and it now had the power to preserve the natural environment as well.

The "water buffalo" hated the preservation scheme because it eroded the principle that water could only be taken out of a stream in order to be put to beneficial use. For six years, they fought the water board's right to protect the rivers. Finally, in 1979, the Colorado Supreme Court made it clear that the water board, but only the water board, had the right to keep water in a stream.

Until the city of Golden decided to build its kayak course.

STEVE SCHAEFER REMEMBERS THE SILENCE OF GOLDEN when the late-1980s oil bust left half the town's storefronts vacant. "Downtown was drying up," said Schaefer, the third-generation owner of Meyer Hardware, the main tool store in this proudly independent town 15 miles west of Denver. "People left for the strip malls and the suburbs." If not for the Coors Brewing Company, the beer maker headquartered in Golden, the little town might have blown away.

In the early 1990s Golden embarked on a downtown redevelopment project—wider sidewalks, river trails, colorful plantings—that played up the town's Old West charm and its potential as a gateway to the great outdoors. The kayak course fit naturally into the town's new image and capitalized on the rising popularity of outdoor recreation. "New economy" may mean "high tech" in San Francisco and Seattle, but in the rural West it's all about skiing, kayaking, off-road vehicles, and camping. Recreation, after agriculture, is now the biggest industry in the state.

Kayak courses are artificial whitewater parks set amidst naturally occurring rivers. Hydraulic engineers shape concrete berms and pile up boulders to create teeming rapids and foaming rodeo holes. The courses are perfect for the latest in paddling technology: shorter, more maneuverable kayaks called playboats. "With the new boats you can play in one spot on the river for an hour, rather than having to plan a whole expedition," explained Chris Creamer, the owner of Alpenglow MountainSports in Golden.

A whitewater park is relatively cheap to build. Golden's cost $165,000 and was completed in 1998. The town quickly began to reap more than its money's worth in kayakers and spectators. "We were astounded," said Dan Hartman, Golden's director of public works. "We got hundreds of people coming down after work, sitting on the banks to watch the kayakers. There were boaters out there at 6 a.m. I saw some aim their truck headlights on the river so they could paddle in the middle of the night." The paddlers often stayed to have a drink and eat in a local restaurant. Local gas stations started selling inner tubes to families who wanted to float the creek. Motels filled during competitions held on the new course, like the Junior Olympics regional kayaking championships. A town study estimated that kayakers and their fans were adding nearly $800,000 to Golden's economy each year.

Elated by its cash cow, the town soon focused on making sure that nobody would come along and drain it. Upstream towns on Clear Creek could potentially divert the water for new residents or mining operations. The people of Golden couldn't let their kayak course turn into a mud puddle. So they did what Coloradoans do to secure a water right. They went to court to fight for it.

IN EVERY OTHER WESTERN STATE, a state agency deals with water rights claims. In Colorado, each of the state's seven major watersheds has its own water court. Appointed by the chief justice of the Colorado Supreme Court, the water judges each consider between 50 and 350 claims a year. But much of the work is done for them by the water bar, as it is known. "The water lawyers all know each other, and most of the time they're able to resolve their differences," explained C. Dennis Maes, a water court judge in the Arkansas River basin, which includes Colorado Springs and Pueblo.

In the past two years, only three water claims in Maes's district have gone to trial. But there was little chance that Golden's claim would settle out of court. "If Golden had just asked for the minimum amount of water necessary for safe passage [of a kayak through the creek], there might not have been a furor," said Melinda Kassen, water project director for the Colorado chapter of Trout Unlimited, an environmental advocacy group. "But they asked for the max. They asked for the roar of the river." The roar translated into 1,000 cubic feet per second, or cfs, during the early summer runoff season. One thousand cfs isn't exactly the torrent of the Missouri River (35,000 cfs), but it's not a flow you'd want to fall into without a life jacket.

Environmental groups like Kassen's supported Golden's claim. More water in the river usually means better conditions for fish and wildlife. But the towns downstream of Clear Creek balked. The Denver suburbs of Westminster and Arvada worried that Golden's water grab would run them dry. Coors was also alarmed; the company uses the creek's water to cool its brewery equipment. (The water touted for its pure-mountain taste comes from underground springs on company property.) Then there were the old mining towns notched between the steep, spruce-covered slopes upstream of Golden. They worried that the kayak course would suck up the water they'd need to become resort towns one day.

Handling the case for Golden was Glenn Porzak, an old-school member of the water bar whose clients include Vail Resorts and the American Alpine Club. Over two years, Porzak soothed each naysayer. He convinced Coors and the downstream towns that they would lose no water. He hammered out a deal with the upstream towns in which they agreed to time their water use so that Clear Creek would run low only at night. "In the end, all of the original objectors had gotten out of the case," Porzak said. "Except one."

The lone holdout was the Colorado Water Conservation Board. Nine of its ten members are picked by the governor, and they essentially have the power to set state water policy. (The board is separate from the water courts, though it sometimes appears at trials as an objector or friend of the court.) The board feared that Golden would set off a statewide water stampede. Every town with a two-bit stream could roll a boulder into the water, call it a kayak course, and lock up the river's roar forever. In the worst-case scenario, crops would wither and suburbs shrivel so Terry Tucker could spin 360s in his playboat. "I'm not opposed to making a buck off the tourists," said Rod Kuharich, the water board's director. "But to sacrifice future water use seemed shortsighted. Golden's application had the potential for a lot of mischief."

And as Glenn Porzak guided Golden's claim through the water court, he also helped the Rocky Mountain resort towns of Breckenridge and Vail, to the west of Denver and Golden, file claims for their own kayak courses. To the south, Pueblo and Gunnison began planning to join them.

In early 2000, Porzak made one last stab at negotiating with the water board. He opened by repeating his bid for 1,000 cubic feet per second. The water board counteroffered 30. One cubic foot of water is a little more than a gallon; the average bathtub holds about 50 gallons of water. The board was offering the flow of a less-than-full bathtub.

"That's when I knew we were headed to trial," said Porzak.

THE JANUARY 2001 TRIAL TURNED IN PART ON THE MEANING OF "BENEFICIAL USE." Assistant Attorney General Steve Sims argued that in asking for the roar of the river, Golden was making a claim that wasn't "reasonable or appropriate," as the courts' past interpretation of beneficial use required.

But Porzak had powerful evidence that the town would indeed benefit. He pointed to the $800,000 a year that the kayak course, with its high-quality rapids, pumped into Golden. "What are you going to do, argue that recreation isn't important?" he later said.

Sims parried by taking a different tack. He asked Judge Jonathan Hays to reject Golden's claim because the kayak course was not the best use of the state's precious resource. To the buffalo, this argument was appealing as a means to an end, since they agreed that farms and suburbs should take priority over kayaking. But it was also heresy because it conceded a role for the state in deciding how water should be used. The AG's office, however, was desperate to head off a ruling that would divert water from the growing suburbs east of the Front Range. To hell with 150 years of the Colorado doctrine, Sims and the water board seemed to be saying; we need to protect this water.

Judge Hays couldn't believe what he was hearing. He gave Golden its 1,000 cfs and spanked the state for sullying the purity of the Colorado doctrine. Golden's water rights could not be denied because of "concern for the quantities that should be left for future water users," Hays wrote. First in time, first in right. Period.

So poorly did the state fare in Hays's courtroom that panicked water board members ran to the legislature in the middle of the trial. Hastily, they'd written a bill to eliminate the right to divert a river for a kayak course. The Colorado Assembly rejected an outright ban, but passed a law allowing towns eager to build kayak courses only enough water to ensure a "reasonable recreational experience."

Meanwhile, the state appealed Hays's ruling. Then Vail and Breckenridge won their water court trials, and the cases were bundled with Golden's for one "super kayak" showdown before the Colorado Supreme Court.

There were 43 friend-of-the-court briefs filed—an extraordinary outpouring of interest even for a high-profile case—and they were almost evenly split. Lining up with the state were the farmers and the expanding metropolises of Colorado Springs, Denver, and its suburb, Aurora. Supporting Golden were smaller, tourist-hungry towns like Boulder, Leadville, Silverthorne, and Grand Junction. Trout Unlimited argued that using the river's flow for kayak courses was good for its ecology. Recreation groups touted the economic yield from river sports, which the Colorado River Outfitters Association put at $45 million a year for the state.

Porzak and Sims replayed their battle before six supreme court justices and a packed gallery. The seventh judge on the court had been forced to recuse himself because he'd formerly represented a state irrigation district that was siding with the Water Conservation Board. That judge was Gregory Hobbs—the court's most knowledgeable judge on the subject of water law.

Without Hobbs to guide them, the other members of the court deadlocked, 3-3. Last May, the Colorado Supreme Court issued a three-sentence verdict: In light of the tie vote, Golden's victory in the water court would stand. Terry Tucker and his playboat would enjoy the river's full roar.

Hobbs naturally can't say how he would have voted on the Golden case. But the veteran jurist gets a gleam in his eye when he talks about the water cases he expects the high court to hear next. "The city of Golden said, 'Ours is an economic benefit, so we can take the top of the hydrograph,' " Hobbs explained, alluding to the method for harnessing the river's full flow.

"But the new state law," he noted, "says municipalities are only entitled to a 'reasonable' recreation use—whatever that means. The issue of whether prior appropriation allows recreational kayak courses is not yet settled in this state."

RATHER THAN ENDING COLORADO'S WATER WARS, the supreme court's decision dispersed them across the state. What was once a fight between the dry, populated east and the wetter west has become one between big cities and far-flung river towns. Kayak courses are coming to small towns like Steamboat Springs and Gunnison. But the people aren't. They're moving to cities like Denver, Aurora, and Colorado Springs, which need more water to grow.

Some water planners have their eye on a long-term solution: the Big Straw, which is, quite literally, a pipe dream. The idea is to tap the Colorado River just before the river jumps the border into Utah. (That's legal under the interstate water compacts because, to date, Colorado hasn't had the capacity to use its full allotment.) The Big Straw would capture the water and send it 200 miles east, into the kitchen sinks of Denver and Colorado Springs. But with cost estimates running as high as $15 billion, the voters have balked. In November, they defeated a referendum to float a $2 billion bond issue that would have paid for new water projects.

Which leaves the booming 'burbs coveting the water that's used by their neighbors. Take, for instance, Colorado Springs. The city expects to outgrow its current water supply in four years as its population grows from 372,000 to an estimated 427,000. So in the best Colorado tradition, Colorado Springs is asserting its senior rights to the water and moving across its neighbor's land to grab more. The problem is, its southern neighbor—the city of Pueblo—needs that water. For a kayak course.

COLORADO SPRINGS WAS ONCE A MODEST ENCLAVE OF MINERS, military personnel, and their families. It's now a sprawling bedroom community. Seventy miles south of Denver, the city is growing so fast that you can watch it expand, framing stud by framing stud. At the eastern boundary of a suburban development called Springs Ranch, hundreds of acres of new three-bedroom, three-bath houses curl around asphalt streets with names like Campstool Drive. Every driveway seems to boast a new SUV or heavy-payload truck. Lawns are as green as they come.

Colorado Springs has going for it decent schools and reasonably cheap housing. It also has a clean-cut, family-friendly culture—the Air Force Academy, the U.S. Olympic Training Center, and the Christian group Focus on the Family are all based there. And then there's the high Rockies location. "The weather's nice, and I can run up to the mountains any time I want," said Diana Calkins, a 58-year-old floral shop owner who recently moved into Springs Ranch.

Calkins's neighbors are a prototype of suburban growth, circa 2003. On one side lives a young military family that just moved up from Pueblo; the father is serving in Iraq. On the other side lives a couple who are middle managers at Wal-Mart.

The Springs Ranchers don't know that the water filling their bathtubs and nourishing their flowerbeds is sucking the rest of the state dry. But it is. Because despite its name, Colorado Springs sits in the middle of a basin with very little water.

To compensate, the city-owned water and power company runs a 46-mile pipe—a Midsize Straw—to a reservoir south on the Arkansas River, upstream of Pueblo. Colorado Springs Utilities pumps 13 million gallons a day out of the reservoir and through hundreds of thousands of Colorado Springs toilets. The water is then treated and returned to the river downstream.

With Colorado Springs's population expected to reach 900,000 within 35 years—the size of Detroit—city and local utility officials are pressing to build a second pipe to the Arkansas River where it courses through Pueblo, a city of 100,000 that straddles the river. This pipe would siphon 78 million gallons a day, six times as much as the current line.

All of this is perfectly legal. Through a series of complex water transfers and water rights agreements dating from 1962, Colorado Springs has the right to pump the water north. Besides, utilities officials say, they're not really "taking" the water. They're just using it for a while, treating it, and returning it to the river.

But in Pueblo, local farmers aren't excited about watering their crops with treated toilet runoff. The city already has an inferiority complex. Once a bustling railroad hub and steel producer that rivaled Denver for political power, Pueblo began a long downward slide in the late 1920s, when rail traffic was rerouted. The town became another down-on-its-luck backwater with the collapse of the national steel industry 50 years later. It struggles with a high poverty rate (15 percent, compared to 9 percent statewide) and a per capita income of $17,163, which is nearly $7,000 below the state average. "That's a special kind of hell, Pueblo," a shuttle driver told me at Denver International Airport. "My sister lives there, and she's gotta come up here if she wants to see me."

To make the reverse drive, from Colorado Springs to Pueblo, is to leave the crisp mountain air of the Rocky Mountain West and enter the sun-blasted Southwestern desert. The sharp ridges and peaks of the Front Range turn bulbous, as if the rocks had melted in the desert heat. For the past quarter century, Pueblo has danced the economic revival two-step by courting businesses with tax incentives and cheap real estate. Military contractors relocated to the area, but those jobs evaporated at the end of the Cold War.

The next stop was urban renewal. Pueblo has spent $100 million on its downtown over the past decade. There are brick flowerbeds and public sculptures. A picturesque canal and broad promenade meander through the city center, and a restaurant sits in the defunct railway station. "Do you have time to see our new convention center?" Tom Florczak asked me when I visited.

Florczak, 50, is Pueblo's deputy city attorney and chief critic of Colorado Springs. Ooh, he hates those Springers. "Colorado Springs's craving for water is like an addict's craving for drugs," Florczak said. "The more they use, the more they need. They're addicted to growth. And who suffers for it? Pueblo!"

The proposed diversion of the river for the new water pipe is a particular insult. Eleven miles of riverbed lie between the point where the water will leave the river and where it will return. "They want to take it out up there," Florczak said, pointing to a dam west of town, "and put it back down there." He gestured east. "Which will turn the section of river that runs through Pueblo into a muddy ditch."

Florczak and I stood on Pueblo's Union Avenue bridge, which overlooks what's already one of the ugliest stretches of river in America. Beneath us the sometimes mighty Arkansas trickled thin and brown through an enormous U-shaped concrete culvert. Folk art murals decorated the 58-foot high northern embankment. The paintings continue for nearly two miles; out of necessity, maybe, they've become a point of civic pride: Florczak tells me that Guinness has named the project the world's largest mural.

It's hard to envision this urban blight blossoming into a sylvan glade, but that's Pueblo's $8.8 million plan. Florczak imagines shaded footpaths and stands of cottonwood trees. At the center would be the town's hope for rejuvenation: a new mile-long kayak course.

Pueblo's kayak course is exactly the kind of "mischief" that Rod Kuharich, the director of the water board, feared the Golden victory would spawn. Colorado Springs has rights to the river that take precedence over Pueblo's. But the state's legal doctrine of pure prior includes a "no injury rule," which bars the senior holder of a water right from making changes that would harm a junior holder. If Pueblo secures a water right for a kayak course now, Colorado Springs might not be able to build its Midsize Straw later. That possibility—and the unsettled questions of law it raises—has increased the smaller town's negotiating leverage.

Still, as Pueblo and Colorado Springs wait for the district water court to hear their dispute, the fight doesn't look to be an even one. Pueblo is so cash-strapped that some officials think it's futile to continue fighting their rich and connected northern neighbor. With 569,000 customers, Colorado Springs Utilities is one of the four largest service utilities in the nation. The company's posh glass-and-steel headquarters loom over the city's downtown. Kuharich worked at the Springs utility before he became director of the water board.

Golden's kayak-run verdict has given Pueblo a fighting chance. But it's hard to believe a kayak course will hold off the people of Colorado Springs and their new houses for long. The drumbeat of development there is too insistent.

Six miles east of downtown, where Pronghorn Meadows Circle meets Antelope Ridge Drive, sits the border of concrete and prairie. To the west are half-built houses and idle earth movers. To the east lie the plains: a speckled, shortgrass sea that stretches a hundred miles. Power lines run horizon to horizon. A soft breeze carries the rumble of a grain truck on a distant country road. A beetle scurries across the sandy topsoil. Survey stakes mark the next housing sites, and a mile downfield squats an enormous, sand-colored object, surrounded by doomed rangeland. It is a water tank, and it is waiting to be filled.

Bruce Barcott, a contributing editor at Outside magazine, last wrote for Legal Affairs about abusive high school coaches.

printer friendly email this article letter to the editor reprint premissions
space space space












More By Bruce Barcott
Count Me Out, Coach
space
Contact Us